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05.03.2016 : News

How to proceed after finding out a candidate might have a criminal record

The reason for a criminal background check is inevitably to answer one question: Will this candidate be a security risk to my organization? While no one can tell for sure whether a person will have the motive or opportunity to commit a crime in the future, a person’s past behaviour is often a reliable risk indicator.

Criminal background checks have only been common practice among Canadian employers over the last decade, since 9/11, and many are still learning about the process and what to do with the results. What if the search reveals a “not clear,” meaning the job candidate might have a criminal record? In the interest of both the company and the candidate, employers must know their responsibilities under the Occupational Health and Safety Act and Human Rights Code.

PROTECT THE COMPANY

No one wants to hire someone who will be a security risk to company property or a safety risk to the other employees. “Hiring a person with a serious criminal record exposes your other employees, your company’s assets, your clients and quite frankly, your corporate reputation to a serious security risk,” says Dan Fallows, Executive Director at Mintz Global Screening.

Under Canadian occupational health and safety legislation, employers have a responsibility to ensure a safe working environment. To knowingly hire someone who has a history of violent behaviour could be considered a breach of that responsibility. What if a company hired a carpet cleaner who ended up assaulting one of the staff? “In the U.S., that would likely result in a “negligent hiring” lawsuit, something not yet seen in Canada,” Fallows says. “But the same could happen here.”

He recommends a few measures of due diligence before the criminal background check. “Have your policy to back you up, know the Human Rights legislation for your jurisdiction, and follow your policy,” he says.

PROTECT THE CANDIDATE

Employers may hire whomever they wish. That said, a decision not to hire someone purely because he or she has or may have a criminal record is discrimination under the Human Rights Code. Fortunately, the difference between discrimination and a legally responsible hiring decision is fairly straightforward: Have a policy. If the company clearly states in a written policy how it will proceed with a criminal background check and deal with the results, there should be no confusion or suspicion of unfair treatment when the time comes to choose a candidate.

Each position carries with it various degrees of security risks. To avoid accusations of discriminatory practice, Fallows says, use the criminal record information only in a way that’s applicable to the position being applied for. “If the job involves working with others and the candidate has no history of violent crime but did something at age 20, such as trespassing, that really has no bearing on his or her ability to do a good job,” he says. “If the candidate trespassed 20 times in the last five years, however, that’s a whole other degree of risk.”

Don’t miss out on a star employee

Remember that a “not clear” could mean any type of conviction. So, before ruling out the candidate, Mintz strongly encourages employers to find out more – especially given that 10 percent of Canadians have a criminal record (that’s roughly the population of Alberta).

Hilary Predy, Associate Vice President, Business Solutions at the Calgary office of Adecco Employment Services Ltd., says it’s never easy to say no to a potentially great hire, especially in a limited labour market. She routinely orders criminal background check for job candidates, while always aiming for the best fit and seeing the person as a whole.

“We are always mindful that because a person has a charge in their past doesn’t necessarily reflect on their ability to do a job well,” she says.

At Adecco, once a result comes back no clear, staffing coordinators address it with the individual. Asked if he or she has anything to share that may be pertinent, it’s then up to the candidate whether or not to declare any past convictions.

Besides an important source of data, a criminal background check also serves as an honesty check. More often than Fallows would like to see, people say they don’t have a criminal record and then the search results say otherwise. “Why?” he says, “Because they simply do not believe anyone will check and unfortunately in a lot of cases they are correct.”

When is a candidate a security risk?

As a result of a 1999 court case in British Columbia, the Supreme Court of Canada came up with a process to determine whether or not there is a Bona Fide Occupational Risk. It was initially based on drug testing but could easily apply to a criminal background check:

a) You need to establish a rational connection

Is there a reasonable connection between the conviction and the position? You need to identify the general relation between the convictions and the role and responsibilities of the position to determine if it is rationally connected to the performance of the job. For example, a person with 22 assault convictions probably should not work as a janitor in a nursing home.

b) Establish good faith

Did the employer adopt the standard in an honest and good faith belief that it was necessary to the fulfillment of a legitimate work-related purpose?

This step looks at the subjective element of the standard. Consider whether the standard was adopted with no intention of discriminating against an employee or group of employees. Just because you don’t like people who drink and drive does not give you a legitimate cause to use that information to deny a person a position based on an impaired driving conviction in a position not associated with driving.

c) Establish reasonable necessity

Is the rule reasonably necessary to the accomplishment of that legitimate work-related purpose?

In this step you need to examine whether the standard is reasonably necessary. After examining the elements of a position, the level of security risk and the seriousness of a criminal offence, is the denying of a person a position a reasonable necessity?

Here are some questions to ask in considering whether the standard is reasonably necessary.

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